San Diego Council to Debate Legal Use of Marijuana

February 03, 2003

H.G. Reza, Times Staff Writer,

SAN DIEGO -- A proposal to be taken up today by the San Diego City Council would make marijuana use legal here for as many as 3,000 seriously ill people. Although advocates say pot would ease the pain and suffering of the sick, opponents say the measure is merely a dodge around federal laws that forbid medicinal use of marijuana. Members of a task force that studied the issue for almost two years say the city needs an ordinance so patients can use as much as 3 pounds of cannabis a year without fear of arrest.
The legal guidelines, drafted under the auspices of Proposition 215, have been attacked by federal drug agents and San Diego Police officials, who reluctantly served as advisors to the task force on orders from the City Council. The debate will make San Diego, long a paragon of law-and-order politics, the latest flash point in the debate between the U.S. government and California voters over a ballot measure that legalized medicinal use of pot. The courts are equally divided on the issue. In 1999, a federal appeals court ruled that so-called "cannabis clubs" can distribute marijuana to sick patients. That ruling was struck down two years later by the U.S. Supreme Court, which ruled that medical necessity cannot be used as a legal defense to distribute marijuana. But the court did not rule on the constitutionality of Proposition 215. Last year, the California Supreme Court ruled that Proposition 215 gives users of marijuana for medicinal purposes limited immunity from prosecution. Weeks later, a federal appeals court ruled that U.S. officials may not revoke the licenses of doctors who recommend marijuana to patients. Scarcely a week has passed in California in recent months when the state and federal governments' dueling policies on medical marijuana have not collided. On Friday, author and cannabis activist Ed Rosenthal was found guilty of federal marijuana cultivation and conspiracy laws. Rosenthal has written books on how to grow marijuana and avoid the law. On the other hand, Michael S. Vigil, head of the Drug Enforcement Administration office in San Diego, continues to insist that marijuana use recommended by a doctor violates federal law. Vigil promised zero tolerance if San Diego joins several California municipalities that have enacted ordinances legalizing medicinal use of marijuana. "There has never been a study that showed marijuana has any medicinal value whatsoever," Vigil said. "We'll arrest people. We're not going to look the other way." San Diego Police Capt. Glenn Breitenstein criticized some members of the task force, which is chaired by Deputy Public Defender Juliana Humphrey, as "activists who are nothing more than marijuana advocates." The guidelines "come closer to legalization of marijuana than meeting the needs of patients," Breitenstein said. He promised that a department spokesman would speak out against the proposal at the council meeting. The "Law Enforcement Guidelines for Possession of Medical Cannabis" is the only item on today's council agenda. Humphrey -- who said she was picked to lead the task force because she successfully defended three clients who used marijuana medicinally -- expects a drawn out meeting. If adopted by the council, the guidelines would be tested over a 24-month period. Patients and caregivers would have to register with a nonprofit health-care agency that would issue identity cards and pass out the drugs. In some municipalities, local police issue the cards, but Humphrey said the task force opposed that because "people will not be encouraged to sign up if they have to do it at police headquarters." She estimated that 1,500 to 3,000 patients in San Diego would sign up for permits. Each patient, on a physician's recommendation, would be allowed to use up to 3 pounds of marijuana per year or grow up to 20 plants. Caregivers would be allowed to take care of up to six patients and would not be allowed to dispense more than 12 pounds of marijuana per year. Some patients who need the maximum 3 pounds of the drug allowed by the proposals would have to go to more than one caregiver, Humphrey said. Still undecided is where caregivers or patients would be allowed to buy marijuana legally if they choose not to grow it. A task force member and cancer survivor said she used marijuana to ease pain and nausea, and had to get the drug from a friend in San Francisco who mailed it to her. "This is the type of situation that law-abiding persons who want to use marijuana for medical purposes want to avoid," said Humphrey. "They are thinking about using it but are afraid of getting in trouble." Breitenstein said the guidelines are unnecessary because San Diego police already have a policy that officers must follow when investigating a possible case of medicinal marijuana use. San Diego police have investigated 19 cases since 1999 of people who said they used marijuana on a doctor's recommendation. In six cases, officers "just walked away" when they determined that the suspects were ill, were using the drug on a physician's recommendation and possessed a reasonable amount for personal use, Breitenstein said. The district attorney prosecuted three other cases and rejected four. Two were sent to the city attorney for misdemeanor prosecution, Breitenstein said. Four cases are still pending. "But the issue," Humphrey said, "is that there may be people out there who are literally dying but too afraid to use this medication because they fear arrest."